Lead Balloon Ep. 39 - Pernicious Copyright Robots: PicRights & the Practice of "CopyRight Trolling"

They're Targeting Your Corporate Blog, Your Company Website and Even Your Social Media, and They Can Level Hefty "Settlement" Payments

There’s a disturbing new trend making waves in the world of online content creation.

Corporate blogs, mom-and-pop business websites, podcasts, even stuff that you posted years ago to your personal website or social media...

"Hey Siri, show me an evil copyright-enforcing robot."

It’s now being examined, sifted through and screened by artificial intelligence bots, which are programmed to search for copyright violations.

The practice has become known as “copyright trolling,” and when the bots find copyrighted images, they send a letter or email demanding payment of hundreds or even thousands of dollars to settle the claim, threatening costly litigation if the recipient does not swiftly comply.

And for the unsuspecting, often well-meaning online creators who receive these letters, it can be a disruptive, scary and expensive experience.

Working on behalf of copyright holders like the AP and the AFP, companies like PicRights and Higbee & Associates may have outdated copyright laws on their side. But according to our guests in this episode, that doesn't make their practices ethical or moral.

Pierre-Nicolas Schwab is a Belgium-based marketer, technologist and business consultant, and the founder of the market research firm Into the Minds. He has blogged about his experience being accosted by PicRights, and exhaustively researched the company and its methods.

And Caroline Fox is the principal attorney at CJFox Law in Richmond, Virginia. With an agency background in public relations and social media, she now works as an attorney specializing in copyright, trademarks and advertising / media compliance, and has advised numerous clients who have received demand letters from PicRights.

Together, we'll explore how these operations work, what the implications are, and how to protect yourself. Because, if you or your company creates content on the internet, you might be surprised to learn just how vulnerable you are to copyright trolling.

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Transcript

Dusty Weis:

There is a disturbing new trend making waves in the world of online content creation. Corporate blogs, mom-and-pop business websites, podcasts, even stuff that you posted years ago to your personal website or social media. It's now at all times being examined, sifted through, and screened by artificial intelligence bots probing for an opening, a weakness, a copyright violation.

Caroline Fox:

Now, we are seeing these new technologies that have been implemented going back into blog archives and claiming copyright violations. You're kind of thinking to yourself, "I don't even remember when I did that. I don't even know where that came from. Is that even my blog?" And it's actually pretty common.

Dusty Weis:

Caroline Fox is an attorney in Virginia who represents a number of photographers, copywriters, and other online creators. She says a growing number of her clients have now received threatening letters and emails from a company called PicRights.

In a practice that's become known as, "Copyright trolling," these letters allege a copyright violation on the recipient's website and demand payment of hundreds or even thousands of dollars to settle the claim, threatening costly litigation if the recipient does not swiftly comply.

While it would be easy to mistake these letters for a scam, here's the kicker. PicRights actually represents the interests of some of the largest photo copyright holders in the world, like the Associated Press and the AFP. While they may have the legal right to send those letters, marketing technologist Pierre-Nicolas Schwab says that doesn't make their practices and tactics ethical.

Pierre-Nicolas Schwab:

They're just after easy money.

Dusty Weis:

In this episode, Pierre-Nicolas shares the tale of his entanglement with PicRights and together with Caroline Fox, we explore how these operations work, what the implications are, and how to protect yourself. Because if you've ever posted a picture online that you didn't take yourself, you could soon be getting one of these letters claiming that you owe money to copyright trolls. I did.

I'm Dusty Weis from PodCamp Media. This is Lead Balloon, a podcast about compelling tales from the world of PR marketing and branding told by the well-meaning communications professionals who lived them. Thanks for tuning in. We are back for Season Four of Lead Balloon, where we share monthly tales from the world of strategic communication that are not only entertaining, I hope, but also offer an opportunity for public relations and marketing professionals to learn valuable lessons from folks who have been there and done that.

Please take a moment to follow this show in your favorite podcast app or click the link in the episode description to subscribe to PodCamp's email newsletter. We are opening the season with a little bit of a PSA this month, because I'll admit, I had never heard about copyright trolling until I received a letter from one of these operations alleging that I had violated a copyright. One only needs to peruse the internet to hear hundreds of stories from small, scared indie content creators who have received these letters.

People who thought that they were licensing a stock photo only to discover that the license that they were sold wasn't valid. People who grabbed a photo off of Twitter for their blog only to discover that it was taken by an AP photographer. People writing a newsletter for a nonprofit who didn't realize that copyright even applied to them. It turns out a whole lot of people at some point have innocently grabbed a photo off Google Images that they didn't have rights to.

The advent of copyright trolling technology means that every one of them could now be subjected to threatening demands for payment. Such was the case with Pierre-Nicolas Schwab, a Belgium based marketer, technologist, and business consultant, and the founder of the market research firm, IntoTheMinds.

Pierre-Nicolas Schwab:

I remember very vividly the moment I got that email. I had a very bad day, because I didn't know what was actually happening. I thought it was a scam at first, until I browsed the internet looking for additional information on the company behind that email that was getting. And I realized that it was true.

There was a legit base for what they did, and I actually did something wrong. It was not on purpose. I have been creating content for 15 years, always trying to respect other people, and did a mistake. It cost a few hundred bucks, actually.

Dusty Weis:

What specifically happened to you? This was all in relation to a blog post that you put up and a piece of art that you put on your blog?

Pierre-Nicolas Schwab:

Exactly. I don't remember the exact topic that I was dealing with. I think it had to do with art. I found a picture that I thought could be used, so I probably credited the AFP. There was no intention on my side to steal the work of someone else.

I mistakenly thought that image was to be used. Because I wanted to respect the right of the AFP, I credited the AFP for the image and also the photographer. And that image got detected a few weeks later by PicRights.

Dusty Weis:

According to documentation on their own website, when PicRights' automated bots detect one of its client's images on a website, it reports each hit back to the client in question. In Pierre-Nicolas's case, they would've pinged someone at the AFP, the Agence France-Presse, one of the oldest Newswire services in the world. Clients are supposed to sort out which uses of the image were licensed, and then direct PicRights to pursue the claims for uses that were unlicensed.

When they've received the green light to chase a claim, PicRights sends an email or a letter to the owner or publisher of a website, in which they allege the misuse, threaten to escalate the matter to a law firm, and try to strong-arm the recipient into settling the claim through payment on an online portal. This may come as a shock to you if you've been publishing stuff on the internet for as long as Nicolas and I have.

After all, the whole methodology behind creating a meme is to grab someone else's photo and add some snarky commentary over it. Not that we haven't been warned against it all along, but in the heyday of blogging 10 to 15 years ago, it was pretty common practice to post a photo on your blog and link back to the photographer. If they didn't like it, they'd reach out to you and ask you to take it down. Or in worst case scenarios, you could expect a cease and desist letter.

Now, certainly bloggers who claimed someone else's work as their own or sold it on a t-shirt, they might be expected to pony up a share of the proceeds. But this practice of sending a demand for payment for incidental or accidental use, this is new. For years, that wasn't the way that it worked. Even if, Pierre-Nicolas says, copyright laws haven't really changed all that much in that time.

Pierre-Nicolas Schwab:

The legal base has always been there. Maybe 15 years ago, it was not enforced the same way it is today, because there were no algorithms or there was no cheap way to do that at-scale. But the law hasn't changed. In terms of copywriting, it's been the same for decades. It's just that people were probably not as much aware 15 years ago as they are today.

Dusty Weis:

The laws were there. They were just basically unenforceable.

Pierre-Nicolas Schwab:

Well, it was much more difficult to enforce them at-scale. Because that's exactly what PicRights does to date, and other copyright chores, by the way. Obviously, that wasn't possible 15 years ago, because there was no CPU that could do that at-scale. Cloud computing was not there and AI algorithms weren't available at that time.

Dusty Weis:

Now, you call this practice copyright trolling in a blog post that you've done that has become something of an authority on the internet. Congratulations on that Google ranking.

Pierre-Nicolas Schwab:

I've been very cautious when I wrote that article using the term, "Copyright troll," because I didn't want to undergo another lawsuit or something like this. I said, "So-called copyright trolls," and that's the term that has been coined for them in general. I'm just reusing the term, but they indeed have mandate from a client to enforce their rights.

But that's more the way they enforce the rights that make them trolls. Because they use the lack of knowledge of the people that they write to. To try to ... Not to steal, because that's not stealing. But to get money that most probably, if there was a litigation, wouldn't be due.

That's what made them trolls. They're playing on fear. Playing on creating stress. And I was in the same state at that time when I got that email. That's what really makes them trolls. They're coming and coming and coming again. It's kind of harassment.

Dusty Weis:

And that's not the extent of the shady business practices or deliberate negligence that have been alleged against PicRights and the companies like it. Some bearing monikers like, ImageRights, COPYTRACK, Copypants, and Pixsy as just a few instances. But if you click over to the PicRights website, it's clear that being branded as copyright trolls bothers them.

In a blog post dated July 2022, entitled, "PicRights is Not a Troll: Copyright Affects Everyone (Including You)," they defend their business practices. Blaming intellectual property theft in the US for $600 billion a year in economic damages and alleging that 2.1 billion images are shared online every day without license or permission.

I quote their blog, "Over the years, we, like most of the industry, have been tarnished as a, "copyright troll," trying to scam everyday people out of money. In reality, we work to secure compensation for our clients, whose livelihood has been harmed by the unauthorized use of their work." Nevermind that PicRights most often represents photo rights holders like the AP and the AFP and not the photographers themselves.

This is a refrain that I heard as well when I became entangled with one of these so-called copyright trolls. I'm not going to say which one or go into the details, because reasons. It's suffices to say that I think I have a very good case and I'm not going to go quietly. But when I got my letter in January, I called up the point of contact to give them what-for, over what I considered to be an arbitrary and punitive response to an alleged innocent mistake.

"George":

Well, first of all, Dusty, they're not punishing anyone. They want to pay their photographers.

Dusty Weis:

Here, we're going to call this guy on the phone, "George." Here, George tried to pronounce the name of this Eastern European photographer, which he was clearly only seeing for the first time as he opened this case file. And then, he gave up and spelled it instead.

"George":

... S-K-Y, who was the photographer. They want to pay him for your use of their image.

Dusty Weis:

Alleged use.

"George":

Right. That's how (censored) make their money. They're a press organization. They're a press agency.

Dusty Weis:

Setting aside for a moment, the absurdity of this guy arguing to me, a former journalist, how important it is for journalists to get paid. I wanted to see just how serious George and his organization were about this noble cause. I logged onto an image license marketplace and paid a substantial licensing fee for the image in question, because yes, I also want journalists and newswires to get paid.

Then, I sent the proof of that license to George and his organization. Two days later, I received this response, "Dear Dusty, although you have purchased a license for your future use of our client's image, it is not a fee for your past use. This matter is not resolved. To fully resolve the matter, payment for the past use of the image is required." Color me shocked.

Pierre-Nicolas Schwab:

They are just after easy money. I cannot blame them for that. That's their business model, so we should respect it. That's the way they conduct business, but I think that search for easy money can also be seen in how they built the PicRights company. The really interesting thing is that where they are registered, it's in Switzerland, and it's on the first floor of a pizzeria.

Dusty Weis:

Not exactly the sort of grand corporate headquarters that I would expect from a multinational corporation.

Pierre-Nicolas Schwab:

Well, it's multinational on paper, because they have indeed subsidiaries in different countries. In that sense, it's multinational, but they are indeed incorporated on the first floor of a pizzeria in a business center. A little bit like ... You would go to Delaware and you had those buildings in Delaware, where you have hundreds or thousands of companies registered. Well, not 100.

Here, it's exactly the same. This business center on the first floor. It's kind of intricate. I went through all the business registries in different countries, in Switzerland, in Germany, in Austria, in France, and so forth and so on. Just to reconstruct the way that the different PicRights subsidiaries are built together. It all goes back to one family. One man, his wife, and the two children.

Dusty Weis:

Because nothing screams legitimacy like a corporate Russian doll of international shell corporations in interwoven corporate governance. Pierre-Nicolas says he's done the research and he's helpfully illustrated PicRights' complicated international corporate structure on a blog post, which I will link to in the episode notes.

Ultimately, the menacing emails, the threats to escalate to an expensive lawsuit, they're intended to get you to agree to pay that settlement fee to make it all go away. Though they pissed him off mightily, as a small business owner whose livelihood was on the line, settling is exactly what Pierre-Nicolas ended up doing.

Pierre-Nicolas Schwab:

I ended up paying 230 Euros, something like this, and it was over. When you have a picture on your website for a longer period of time, you may end up with thousands of Euros claimed by PicRights. So I quickly took it away. I thought about what I could do. I called a friend who had experienced something similar. He has a very big website where he remixes images and videos from bigger brands.

He told me, "Well, I've never paid that amount of money," because they may come after you once again if there is something to be found on your website. He said, "Well, I got a request of that kind every single week and I just forget them." It's just hard to live with that, because there is always that feeling that you did something wrong. That something of a different magnitude could happen to you if you do not react, if you do not pay.

Dusty Weis:

Instead of paying a 250-Euro fine, they could come after you for much more.

Pierre-Nicolas Schwab:

We should not use the term, "Fine," because fine comes from justice. They are not entitled to give you a fine. They are just entitled to propose you a settlement to avoid a lawsuit, which most probably ... And that's where it becomes tricky. They would in Europe most probably lose. But the question is for someone who gets that email, who gets that request. Does he or does she want to go through a lawsuit?

Dusty Weis:

And potentially have to pay a lawyer thousands of dollars to make your argument for you in court, when you have a settlement fee that appears to be much smaller dangled in front of you like that. You obviously chose to settle. Why did you choose to settle?

Pierre-Nicolas Schwab:

Because it was 230 bucks, first of all. Because I was ignored, second. But I should say now, with all the knowledge that I have accumulated after that. If that would happen again, I would gladly go to court just to make them lose. Because I'm now sure that I would most probably win. Plus, I haven't heard of any lawsuit that they have started or even won.

Dusty Weis:

Now, there's no doubt that here in the States the law might not be as generous for the common man as it is in Europe. But make no mistake, our next guest says that copyright trolling still seldom leads to successful lawsuits in America either. Caroline Fox would know. She's an attorney with experience protecting clients from PicRights' claims.

Caroline Fox:

These letters that they're getting say, "You are going to owe us this much money. It's $150,000 per infringement," blah, blah, blah. When really those remedies aren't available to the person that's claiming them.

Dusty Weis:

We're going to talk about what courses of action are available to you if you get a claim letter from PicRights, what happens when PicRights escalates a case to its partner law firm, some unethical practices Caroline says she's observed from these folks, and above all, how to protect yourself from ever running a foul of the pernicious copyright robots. That is all coming up in a minute here on Lead Balloon.

This is Lead Balloon and I'm Dusty Weis. "We caught you using an unlicensed image on the internet, so pay us money or our clients will sue you." That's a basic gist of letters and emails that have gone out by the thousands over the last couple of years from so-called copyright trolling operations like PicRights and their affiliated law firms like Higbee & Associates.

Backed up by an unrelenting army of AI bots which scour the web for alleged copyright infringement, these companies mark a massive departure from the way that things have traditionally been done on the internet, but the law is technically on their side. Even for blogs that you may have posted and forgotten about more than 10 years ago.

Caroline Fox:

You're kind of thinking to yourself, "I don't even remember when I did that. I don't even know where that came from. Is that even my blog? What's going on here?" It's actually pretty common. It's been happening a lot.

Dusty Weis:

Caroline Fox is the principal attorney at CJFox Law in Richmond, Virginia. With an agency background in public relations and social media, she has for the last nine years worked as an attorney specializing in copyright, trademarks, and advertising media compliance. But she's also more and more these days hearing from clients who have received one of these claim letters from PicRights.

Caroline Fox:

People still call me absolutely panicked. Because they're just like, "Oh my gosh. What is happening? Why me? Why is this happening? I never thought it would happen to me."

Dusty Weis:

Now, this seems like as good a point as any to remind you that this podcast is for informational purposes only and does not constitute the rendering of legal or any other advice. Our guest's opinions are based on information they consider reliable, but PodCamp Media is in no position to warrant its completeness or accuracy and should not be relied upon as such. Please consult with a lawyer regarding your own individual circumstances. Et cetera. Et cetera.

Caroline Fox:

I would say I hear once every month or so that somebody's got a notification. Whether it's a client or somebody a client knows. Usually, I'll just tell them, "You should probably get in touch with a lawyer. At least to evaluate." That kind of thing. It's pretty common.

Dusty Weis:

I recently received one of these letters myself about an alleged copyright violation. That process is playing out right now, but I've got to say reading the letter ... When you read it, it sounds pretty scary. It sounds pretty serious. How serious would you say the threat is to creators though, really?

Caroline Fox:

There's a couple layers to this. This is where I get a little bit passionate about it. If there is a willful copyright violation for a pre-registered work or a work that had been registered before the infringement happened, it could be bad. It could be really bad.

Those are those million-dollar verdicts we hear about. Like the Robin Thicke, Pharrell situation. Those aren't great, but there's usually a couple of different factors at play there. There is technically no such thing as, "Innocent infringement," and we do say copyright infringement ... It's kind of like a strict liability crime, because the act of doing it is the taking of the image and reposting it.

Dusty Weis:

Under the law, at least.

Caroline Fox:

Under the law, at least. Yes. But mentally, people don't go in ... Especially, creators who really do typically have some respect for, "I don't want to take this other person's stuff and pass it off as my own. I'm just reposting it or using it." Whatever. Even some people giving credit. People think, "I'm going to give them credit. I'm going to link to their website. I'm going to say I got it here. It's going to be fine."

That doesn't mean anything. You have to have an actual copyright license or something in writing or approved from the creator for it to not be copyright infringement. The severity of it can often be bumped up into those numbers. That $150,000 per infringement figure that you see thrown around. I get upset because a lot of times that gets thrown around for works that were just registered.

Your infringement was from back in 2010 when it was not registered. This is another confusing thing. When you make something, you immediately have a copyright in that work. However, according to SCOTUS, Supreme Court of the United States, as of 2019, I believe ... If you want to sue on that copyright or enforce it with the courts, it has to be registered. You have a copyright in it, but you can't actually enforce it unless it's registered.

You have somebody who infringes before you've registered it. In order to enforce it, you have to go back, register. And then, you have lessened damages, so you can't claim as much money. These letters that most of my clients or my colleagues' clients, because there's a bunch of us that chit-chat around ... The ones that they're getting say, "You are going to owe us this much money. It's $150,000 per infringement," blah, blah, blah. When really those remedies aren't available to the person that's claiming them.

And then, sometimes too, we also have a statute of limitations problem. Because technically, your statute of limitations, it's going to be shorter. These copyright notices that you're getting or that my clients are getting that are back from 2013, 2010, 2008. You're sitting there and you're like, "There's a huge statute of limitations problem." But there was one case out of California, which is a very heavily-weighted jurisdiction for this kind of legal decision that makes it a little bit gray as to, "When does that statute of limitations start?" When does that timer start? When does it stop?

Dusty Weis:

Whether it's when you first used it or whether it's when you stopped using it, if you ever stopped using it. If you've got something that you put on the internet 12 years ago, but it's still out there, that clock may have not even started running yet.

Caroline Fox:

Exactly. When the copyright holder should have found it. There's some gray area on that. There's cases like MGM versus something ... I can't remember off the top of my head. And so, this three-year timeline. When does it start?

If you are continually creating or reproducing something, like say, you have a DVD. Your first infringement is 2010, but you're continually printing that DVD or copying that DVD. You're obviously still going to be doing acts of infringement. However, if you do it one time in 2013, how can they come back and get you now? That's been a fight that I've picked a lot, because there's gray area.

Dusty Weis:

So much gray area. But Caroline says that doesn't stop PicRights and its associates from promising everything short of fire and brimstone in the letters they send out.

Caroline Fox:

The PicRights letter asks for either a couple of hundred dollars or your low couple of thousand. Just depending. You might get one or two of those. If you don't answer or you tell them to pound sand, you will then start getting letters from Higbee & Associates. Higbee & Associates is the law firm that represents them. They're based out of ... I believe it's Orange County, California. They start sending you nastier letters.

There's a lot of legal jargon in there. I have a lot of strong feelings about the way in which they pursue those claims. I think, as lawyers, we try to not be critical of our colleagues unless we feel that it's necessary. In these cases, I believe it's completely necessary. They will send you multiple letters. They'll ratchet up the fees. They'll say, "If you pay it off, we're not going to go after you for $150,000," and you try to negotiate with them.

A lot of times people will try and take it upon themselves to say, "I didn't know. I took it down. I did that." But that's actually really harmful. Admitting literally anything is going to be super harmful, because it can show different things that we don't necessarily want to give away.

You have some poor mom-and-pop restaurant who used a picture of french fries on their website that was owned apparently by some other company that this firm now represents. They're admitting to all this stuff, "I used it back in 2014. I got it from this website. I did this. I took it down." Trying to be honest and upfront.

Dusty Weis:

You're giving them basically an admission of guilt.

Caroline Fox:

You are. I will often get people coming to me and they'll be like, "Here's the email chains and here's this." I'm just like, "God. Okay. I wish you wouldn't have said any of that." If you do retain a lawyer, they are supposed to stop contacting you. They can only contact the lawyer. That can make things stop. It is an ethical violation for them to contact you individually after you have retained a lawyer.

I will say, I have a client where that did not happen. We had to tell them, "This is an ethics violation. If you continue to do that, we're filing bar complaints." I know there have been several bar complaints filed already. I know there have been several lawsuits, but that is one reason to engage an attorney, so that they stop bothering you. Because the letters they send are very forceful and very scary. They'll cite laws and cite cases. They're being lawyers. They're making it seem like their side should win.

Dusty Weis:

They're turning up the pressure on you to settle.

Caroline Fox:

Exactly.

Dusty Weis:

To pay what seems compared to those big fines and fees to be a pittance.

Caroline Fox:

Right.

Dusty Weis:

What happens in the event that you're a small content creator? You're a small fry. You're stressed out. You're overwhelmed. Eventually, you throw up your hands and say, "Well, I'm going to ignore this. La, la, la, la, la," and don't respond to the letters.

Caroline Fox:

If you don't respond to the letters, one of two things is going to happen. The first thing is they're going to eventually be like, "All right. Well, this isn't worth it. We're going to leave them alone." That I think typically happens for smaller infringement and cases where they know that there's not potentially a lot of money on the backend.

I'm sure that there's some evaluation on their backend about, "What type of case is this? How much money is potentially going to come out of this and is it worth it?" There's a cost benefit analysis as you do with any sort of legal claim. I do that with my clients all the time.

The other side of this is they could continue to send letters. Another one of the things they do is send copies of complaints. They'll send you a copy of a lawsuit and say, "If you don't pay this, we're going to file this." A lot of times that lawsuit is more of a form.

Dusty Weis:

It's boiler plate.

Caroline Fox:

It's everything but the kitchen sink thrown in there. I think it would be heavily-edited if it was going to get filed, but it's really scary to see your name on the lawsuit that's been ... It's certified. Mailed to your door.

That's one of the last ditch efforts before anyone files a lawsuit. I've sent those myself and have been like, "Please settle with us. Because this isn't going to help anybody if we go to court." And then, either they leave it alone, they drop it, or they sue you.

Dusty Weis:

Essentially, what companies like PicRights and Higbee have engaged in on behalf of their clients is a drawn out long-distance game of poker. These companies are highly secretive about the processes that play out behind the scenes in their decision-making. We're left to guess, but it stands to reason that with an automated system to search for alleged violations and send out notices, it basically costs them nothing to bombard people with these letters.

Hypothetically, let's be conservative and say that one out of every 10 recipients pays a $500 settlement, and they send 100,000 letters in a year. Again, pretty conservative. That's a cool revenue stream of $5 million without so much as having to lift a finger. One can also assume that when they catch an alleged copyright violation on the blog of a high-profile corporation, the settlement ask is almost certainly much higher, as is the rate of settlement.

But after all that bluster, the nastygrams, the threatening letters, is it really worth it for them to take an alleged violator to court? One would think that there's a cost benefit analysis that plays out. How likely are we to win? How much would it cost us to win? And how much are we likely to win? According to Caroline, the result of that formula is very seldom a lawsuit.

Caroline Fox:

They have sued people. It's just a lower ratio than you would potentially think.

Dusty Weis:

All that is to say, and I cannot stress this enough, making sure photographers get paid for their work is a noble cause if it's done right. It's not even the bot enforcement technology that Caroline takes issue with.

Caroline Fox:

I have some crawlers that will go out and search for my client's content that's being actively pirated, but the line that we draw ... This is more of a moral thing than a legal thing, but I sit with the clients and I say, "All right. What are the situations that we really want to enforce?" If it's an innocent infringement and we know that it is.

Maybe somebody took ... One of my photographers who's a really well-known photographer, they take an image of hers and they put on their blog. They talk about how much they love it. Or they say, "This inspired me. X, Y, Z." We're not going to go after them. We're not going to demand. We'll say like, "Hey. Can you either take this down or link back?" Or, "Make sure you say that you didn't take this." That kind of thing.

You have situations where it's obviously very different. People are saying, "I took this image." Or you'll see a lot of websites or URLs, they try to build up SEO and sell URLs. They'll take well-known images and content and repost it there for SEO purposes and try to flip the domain.

That's a situation where we'd be a little peeved, but I would not be championing this, "We're making sure our photographers are getting paid," but you're also really hurting small businesses and small creators. And large creators and large businesses. Not everybody cares about large ones, but somebody's got to.

Dusty Weis:

Well, it used to be, as you alluded to, and I think that a lot of people who are in this space do draw a moral distinction there ... Certainly, the practice has always generally been, if you hypothetically got nabbed for using a photo on your blog, you'd get an email from somebody saying, "Hey. Can you link back to us or take that down or pay us?" Suddenly, now the practice is, "Hey. Take that down and pay us."

Especially, in the case where you see so many of these things happen inadvertently. I think that's a bad look. And then, I also think that there's an almost monopolistic bent to some of this as well. For these big journalistic wire services like Agence France-Presse, like the Associated Press, to contract with companies that are tasked with ringing money out of indie journalists and bloggers. It's almost like they're muscling out the small competition and punching down.

Caroline Fox:

That's a really interesting perspective on it. That's not something that I thought about either. The indie journalists who maybe aren't going to be able to go get pictures at the front lines in Ukraine, and take pictures to document what's going on there or things like that. There are certain exemptions.

There are certain fair use arguments to be made. Especially, if you are a journalist with a news organization. Bloggers don't often get as much leeway. I will say that. They're not seen as journalists. There's definitely a stark line between journalists and content creators, in the eyes of what's fair use versus not. Should it be there? Probably not. I think it will eventually go away, but I had not really thought about that. I think that's a very interesting thought as well.

Dusty Weis:

What needs to happen as far as modernizing our statutes?

Caroline Fox:

There is a lot of conversation about that, because I think there's going to have to be a huge overhaul on that. I worked at a musician's lobbying group in DC for a while when I was in law school. A lot of it was compulsory licensing, paying artists, things like that. That's a whole other animal as well. I don't really know many sectors of the copyright spectrum.

The big companies aren't doing great. I worked at Sony for a minute too. They're not loving the copyright ecosystem. There's reclamations happening. There were some laws passed where after a certain amount of time, a creator can come back and say, "Well, I get a second bite at the apple. I'm taking back my copyright even though I sold it to you." We've got that going on in the large businesses.

Small businesses can't afford to enforce their copyrights. The tiny businesses don't even know what's going on, because they're just trying to run a french fry shop and not have to deal with getting cease and desist letters. I really don't know anybody who is thriving here. Musicians get paid pennies on the dollar for any money that gets made from streaming. We may need to just start over.

Dusty Weis:

Burn it all down. Start fresh.

Caroline Fox:

I really don't know the best way to fix our copyright laws as they are, but there's a lot that needs to be done.

Dusty Weis:

As far as these things go, they say that an ounce of prevention is worth a pound of cure. Certainly, a lot of folks right now are sitting there wishing that they had an ounce of prevention right here. How does one keep from ever running afoul of PicRights?

Caroline Fox:

The easiest way is to make your own content. That is the absolute easiest way, because you will always know that you own the copyright in it, and that there is no way that they can claim it's theirs. The second easiest way is to know the creators of what you're working with. Get licenses for it. Keep those in writing somewhere. "In writing," can be by email. It can be e-sign. That kind of thing.

The next thing you can do. The next step up would be use a licensing service. The best known one is Getty. Getty Images, you pay a certain price, you get the images. You can use them. The only bad thing about that is a lot of those services, as soon as you stop paying the licensing fees, your license gets revoked. Then, they can go after you. They can say, "Not only do we think you infringed, but you had a license, and then you stop paying for it. This is willful infringement."

And then, you have that whole shenanigans. There are some websites that purport to have royalty-free license. You-don't-need-a-license images. If you are online and you see things about Creative Commons, A, make sure that they're actually original, and that they're not pulling it from somewhere else and saying, "It's free. It's fine."

Because I've had that happen to somebody. Or make sure you understand Creative Commons licensing. It's not just, "It's Creative Commons and everybody gets to use it however they want." There are licenses that go along with it. You have just your plain old flat Creative Commons, and you can use it however. There's Creative with Attribution. There's, "With no editing." Things like that. Make sure you actually understand what those mean before you grab one of those and use it.

Dusty Weis:

What if you are someone who has been a content creator for a very long time and know that you probably violated copyright repeatedly when you were a blogger in 2008? Because that was what everyone did back then. Even if that blog is pulled down, there are snapshots of the internet from 2008 that can serve as evidence that this thing happened.

Are you just damned if you do, damned if you don't, at this point? Is it a matter of going back through and auditing content that you wrote more than 10 years ago? Or is that an exercise in futility at this point?

Caroline Fox:

In a best case scenario, you would go back and audit it. You would say, "Wow. All of these images and all this back content that I have from 10, 15, however long it's been ..." Yanking pictures down and making sure that they're not still active on your website. It'll be a little bit harder for crawlers to find things like files that aren't saved in your web structure. They won't be able to find those.

They'll only be available on the Wayback Machine or on whatever internet archive you're on. I hate saying, "Well, we're all screwed," but there is the ability for them to go back and find stuff. If it's not deleted off your server, there's potentially the ability for these little crawlies to go through and find it. I also have someone who I have worked with. We didn't end up doing anything about it, and it ended up going away. She, again, authorized me to say stuff about this.

There was stuff that she swears was never on her server. Because she keeps her own server. She's very tech-savvy. She was like, "They're saying that I have these images. I've never posted this. This is not even what my blog is about, but they're saying, here's my URL and here's this image," blah, blah, blah. And so, I have no idea how that happened or what happened there, but I would say just be very careful. Go through and see what's there, so that you know what's there.

Dusty Weis:

And then, hide under your table and hope for the best. It's wild. Because clearly, this is a profitable endeavor for the companies that are carrying it out. And so, one could imagine that like with drilling oil, you drill and you drill until you run out of oil. And then, you drill a little bit deeper.

The internet is a big place. I certainly don't think that they're in danger of running out of copyright violators anytime soon. But one can also fathom a future in which they decide, "Why don't we go scrape the internet Wayback Machine and see what's out there?"

Caroline Fox:

The positive here and the thing that we can wait for and look towards is we need to get a case where we do get a really good statute of limitations ruling. Where they clarify that. Because right now, the way that ruling went, it's like, "Is it what they're saying?"

In my opinion, I think it's very clear that's not the case, but you can argue gray until you're red in the face. That would be the thing that we're waiting on. To really clarify whether they can go back to 2008 and say, "Well, it's still there. You owe us this money." Which in any other case, with a statute of limitations, there's a reason that a statute of limitations exists. I think it's a matter of time until we get that.

Dusty Weis:

You know what I really hate about it? As someone who was a creator in the internet back in ... I'm going to start calling them the Golden Days to really show my years. But the thing that I loved about the internet back then is that it was this melting pot of collaboration. It was this space in which you were free to be creative. I think the end result of this new stringent, bot-backed enforcement that we're seeing now is that people are going to be scared to create.

People are going to be scared of the stuff that they did create. They're going to take it down and delete it forever. The end result is an internet that is duller and more boring. I think it's going to scare people away from wanting to create anything at all, and the fewer creators there'll be.

Caroline Fox:

The whole reason we have these laws in place is to promote the arts and to promote expression and things like that. To reward creators. What they're doing right now seems like the opposite. And so, that's where it gets frustrating. It seems like it is doing the absolute worst thing it can do, which is like strangling your creators and your creative people.

It is very frustrating as somebody who sees it happening and can see why it's needed, but why it also is being exploited in many ways, shapes, and forms by many different types. On both ends of the spectrum. Because I also have clients who are trying to enforce things and we can't get stuff taken down. It's very clear they're reselling content and reselling videos or courses or things like that we can't even get to. You see it on both ends and it's extremely frustrating.

Dusty Weis:

Pierre-Nicolas Schwab, the Belgium based marketing technologist and agency owner that we talked to earlier in the program, does not share my bleak assessment of the future of the internet.

Pierre-Nicolas Schwab:

What I observe is quite the contrary. The velocity, the dynamics behind content creation is way more than what it was 10 years ago. Why? Because there are not only blogs anymore. You have podcasts like we do today. We have YouTube, TikTok, and all the likes where the amount of content and of original, interesting content created ... It's just amazing.

That's something that could not have happened 15 years ago. The very definition, the nature of creation, of innovation is still the same. It's remixing things together. It's just the velocity, how it happens, that has increased so much compared to 20 years ago. So I would respectfully disagree with your statement.

Dusty Weis:

I like your sense of optimism, but do you foresee a world in the future where copyright is enforced on an even grander scale on platforms like TikTok, on platforms like YouTube, where this same technology can be used to pursue people who are remixing video content on those platforms?

Pierre-Nicolas Schwab:

Well, I don't know whether it will be used to pursue people, but YouTube is already using it with music. As soon as you have music in your video that is copyrighted, it will just stop the publishing process, so that technology is already in place. It's just the way you leverage that technology that changes.

You have the right way to do it according to me, like as YouTube does it, where it prevents you from doing an error. And you have other ways to leverage the technology, where they go after you, trying to get your money and make you pay for the mistakes that you did. Most of the time, not on purpose. Well, that's not the right way to do it.

Dusty Weis:

From Belgium, Dr. Pierre-Nicolas Schwab. Marketer, technologist, business consultant, and founder of IntoTheMinds. Thank you for joining us on the Lead Balloon Podcast.

Pierre-Nicolas Schwab:

Thank you for having me.

Dusty Weis:

Thanks once again to Pierre-Nicolas, as well as Caroline Fox, principal attorney at CJFox Law in Richmond, Virginia. As I mentioned, they've both authored some pretty fire blogs on this topic, which I will link to in the episode description.

This is not the PicRights logo

They both reiterated the advice that anyone who posts on the internet or ever has posted on the internet, blog, website, work project, social media, whatever ... You should maybe consider an audit of what you've got out there to make sure that you own the rights to all of it, because it seems like this practice is only going to get more prevalent.

Now, if you have gotten one of these claim letters, I'm really sorry that you're going through that. It sucks. I feel you. May the odds be ever in your favor. I will note here that I reached out to the respected Newswire Agence France-Presse to invite them to comment on their association with these so-called copyright trolling operations and AFP declined to provide a response. The alleged copyright claim against me remains ongoing. I'm not going quietly.

I think I have a good case and my lawyer does too. And I'm glad that I got to use my unpleasant situation to hopefully inform a whole lot more people about this trend. But I will just note here that I will not be providing any further updates about my case in this feed. Lest anybody decide that they would like to make a public example of my well-meaning small business operation. If it happens, I won't be giving it publicity.

If you know someone who needs to hear this story though, please do send them a link to the episode. I'm sure that the copyright trolls who make millions would agree that more people need to know about this. Subscribe to Lead Balloon in your favorite podcast app for more important tales from the world of strategic communication. A five-star review is always appreciated as well.

You may note that the art for this episode is kind of neat. An artificial intelligence generated that, so that ought to be clear of any copyright issues. If Caroline were still on the line, I bet you would laugh her head off over that, because of course there are going to be legal proceedings in the future about how AIs ingest copyrighted imagery to train themselves to make art. Should be an interesting show topic when it happens. Check out the link in the episode description to see some of the other wacky art that the AIs generated when I told them to draw me some evil copyright-enforcing robots. It's dynamite.

Lead Balloon is produced by PodCamp Media, where we provide branded podcast production services for businesses. Our podcast studios are located in the heart of beautiful downtown Milwaukee, Wisconsin, but we work with brands all over North America. Podcampmedia.com. Music by Neon Beach, PALA, OBOY, and Falls and licensed through Soundstripe. Larry Kilgore III handled dialogue editing on this episode. Until the next time, folks, thanks for listening. I'm Dusty Weis.